The constitutionality of the Belgian burqa ban

On 6 December 2012, the Belgian Constitutional Court held that the 2011 so-called “burqa ban” does not violate the Belgian Constitution. A boundary is crossed when rights of individuals are simply sacrificed to majority sentiments; a boundary which should be protected by institutions such as the Court.

A protest against the ban in Brussels. Flickr/Mkhalili. Some rights reserved.

Following
France, Belgium was the second European country to introduce a general
prohibition on covering one’s face in public, or “burqa ban”. The Act of 1 June
2011 renders it an offence to publicly “cover or conceal one's face in whole or
in part, so that one is unrecognisable”. Exceptions are limited to “legal
provisions”, “labour regulations”, and “local ordinances regarding
festivities”, which impose or allow for face covering.

The
Act was intended to guarantee public safety. Other stated purposes include
considerations of a societal nature, including “promoting ‘living together’”,
with an emphasis on communication and recognisability, and protecting women’s
rights.

Several
appeals were filed with the Belgian Constitutional Court. Applicants
argued that the prohibition violated several rights and principles, including
the principle of legality, the freedom of religion, and the right to
non-discrimination. Save for one minor proviso, the Court rejected all these arguments.

Principle
of legality

Applicants
argued that the scope of application of the law is unpredictable and
potentially boundless, while there are only limited exceptions. This would
render it impossible for citizens to ascertain whether their behaviour is in
compliance with the law. This is all the more problematic, since intent is not
required: mere negligence is sufficient to be punishable. All of this was
claimed to violate the principle of legality, which requires laws to be clear,
ascertainable and sufficiently precise.

The
Court finds that this principle has not been breached. Concepts such as
“recognisability”, “covered in part” and “places accessible to the public” are
all deemed sufficiently clear to allow a citizen to determine their scope. Any
remaining margin of appreciation for the judge does not pose problems of
legality.

These
general statements by the Court however in no way clarify the reach of the
burqa ban, and they certainly do not limit the prohibition in any way. As such,
it will have to be assumed that all types of partial concealment of one’s face,
which impede “recognisability”, regardless of intent, are forbidden in Belgium.
It follows that somebody who wears a scarf and a winter hat to protect himself
from the cold is punishable. The same goes for cyclists wearing dust masks,
human mascots at sports events, veiled brides, and Boy Scout leaders who
disguise themselves during a game.

Safety

The
Court devotes most of its attention to the alleged violation of applicants’
freedom of religion. The Court finds that the stated purposes of the law are
all legitimate, and that the ban also meets the proportionality standard.

The
Court accepts, for instance, that the legislator has good reason to fear that
facial covering may indeed harm public safety. In doing so, the Court
acknowledges that in Belgium, thus far, the Islamic full-veil has not in fact
given rise to any actual safety issues yet. However, the Court reasons that it
does not follow from the fact that there are no problems (yet), that the
legislator should not be allowed to act. The latter is allowed to ‘anticipate’.

The
American author Philip K. Dick described in his dystopian short story “The Minority Report” (written in 1956 and
adapted into a feature film in 2002) how, in a future
totalitarian society, clairvoyants (‘precogs’) were able to predict crimes.
Potential criminals were pre-emptively apprehended, until it turned out that
not all potential criminals would in reality commit crimes. The difference
between the 1956 fiction and present-day Belgian reality is that the
antidemocratic measures in the fictional short story were at least effective in
improving public safety.

Prior
to the introduction of the burqa ban, Belgian legislation already allowed for
identity checks to be performed by the police. It is hard to see why this would
be deemed insufficient from a public safety perspective. Moreover, most types
of face covering pose no security risk whatsoever. And it seems rather
unrealistic to assume that those who intend to rob a bank would refrain from
doing so out of fear of committing the additional infraction of wearing a mask
in public.

‘Living
together’

The
Court also considers the promotion of ‘living together’ (‘le vivre ensemble’)
to constitute a legitimate aim. In this context, the Belgian legislator
referenced the French philosopher Emmanuel
Levinas who according to the legislator has stated that “our
humanity is expressed through our face”. The legislator moreover declared that
a person of whom only the eyes are visible would be “unable to participate in
democratic dynamics”.

It
is remarkable, to say the least, that the Belgian Constitutional Court would
accept that a violation of the freedom of religion would de facto be
justified by a violation of the right to privacy. Freedom of religion is, after
all, restricted in order to pursue an invasion of people’s privacy, as the
State wishes to force people to communicate with each other when in public,
with the State deciding how such communication should take place in order to be
valuable or ‘democratic’. Would it not be more respectful of democratic values
to leave it up to individual citizens to determine whether and when they want
contact with their fellow citizens in the streets? Even if one were to consider
it a legitimate purpose to promote such contacts, criminal punishment does not
seem a fitting means to do so.

Women’s
rights

The
Constitutional Court also finds in favour of the legislator’s concerns about gender equality in justifying the burqa ban. Following the legislator, the Court makes a
distinction between women who are forced to wear a face-veil and women who do
this of their own free will.

The
Court indicates that, in the hypothesis that women are forced to
wear the full-veil, the legislator may assume that the “fundamental values of a
democratic society” oppose such coercion, and justify a ban. In doing so, the
Constitutional Court disregards the fact that the law punishes not those who are exerting the
coercion, but those who are the victims of such coercion. The
Court responds to this objection with a mere reference to article 71 of the
Belgian Criminal Code, which excludes criminal liability in cases of force
majeure or coercion. Not only does this contradict the Court’s preceding
statement that punishing the wearer is legitimate even if coercion is involved,
but the Court also fails to take into consideration that a woman who is
repressed to such an extent that she may be coerced into wearing a full-veil,
is highly unlikely to invoke this defence, in view of the social sanctions this
would entail.

The
Constitutional Court accepts that gender equality also justifies a ban if
wearing the full-veil is instead a “well-considered choice by the woman”. The
reasons why the Court allows for this are twofold. To begin with, the Court
points out that the requirement to wear such clothing is limited to women,
and additionally the full-veil serves to deprive its wearers “of a fundamental
element of their individuality”. The Court thus accepts that the legislator can
or even should ‘emancipate’ women against their own well-considered and
informed opinion. This despite the fact that all available empirical research
(carried out in Denmark, France, the Netherlands and also in Belgium) shows that the women who are affected
by the ban experience the full-veil not as something that deprives them
of their individuality, but instead as a means to express their
individuality.

This
may seem counterintuitive to many of us, but – as pointed out by the German
philosopher Andrea Roedig – by the same token that
the full-veil can be interpreted (and prohibited) as a symbol of oppression,
the crucifix could, viewed by an uninformed outsider, be taken as a sign of
veneration of torture and inhumane treatment.

Rule
of law

The
only restriction the Constitutional Court imposed is that the ‘burqa ban’ may
not apply in “places of worship”, as this would unduly restrict the freedom of
religion. A similar reservation was made by the French Constitutional Council(Conseil
Constitutionnel) in respect of the French ban. Government interference in
religious matters has gone far indeed when it has become necessary to point out
that there should still be a right to cover one’s face in a place of worship.

All
in all, the decision of the Belgian Constitutional Court seems regrettable.
Fundamental rights ultimately exist to protect minorities, unpopular minorities
in particular, against the tyranny of the majority. A boundary is crossed when
rights of individuals are simply sacrificed to majority sentiments; a boundary
which should be protected by institutions such as the Court. In other matters,
the Constitutional Court has not hesitated to fulfil this role. In the case of
the burqa ban, however, these boundaries seem to have evaporated, making for
the constitutional equivalent of a Schengen area.

About the authors

Jelle Flo is an attorney at law who joined the Brussels bar in 2004. His practice is focused on commercial law and company law mainly, but he has a keen interest in constitutional law and has appeared before the Belgian Constitutional Court on several occasions.

Jogchum Vrielink is a postdoctoral researcher and coordinator of the Centre for Discrimination Law (Research Centre on Equality Policies, Institute for Constitutional Law, University of Leuven).

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